UK: Squatters Face Criminal Penalties

There has been increasing concern about the cost and
inconvenience caused by squatters when they occupy property, not
least because of the apparent inability of the police to assist
property owners and occupiers when such problems occur. As a
result, owners and occupiers have too often had to spend
considerable sums in seeking to evict squatters, repairing damage
and cleaning up the debris they leave behind.

However, it may be that these problems are in the past - at
least for owners and occupiers of residential premises. Since 1
September 2012, when section 144 of the Legal Aid, Sentencing and
Punishment of Offenders Act 2012 came into force, there now exists
an offence of squatting in a residential building. But will the
police be willing to use the new offence and, if so, what are the
implications for the owners of commercial properties?

Lack of effective criminal remedies

Until the 2012 Act came into force, squatting was not of itself
a criminal offence in England and Wales. It was simply regarded as
a form of trespass and therefore a civil wrong.

The only potential criminal sanctions available to deal with
squatting were under the Criminal Law Act 1977. Section 12 of this
Act makes it an offence for a squatter to fail to leave a
residential property when required to do so by a displaced
residential occupier or a protected intending occupier of the
property.

Aside from the fact that this offence gives no assistance to
owners of commercial property, there are also circumstances where
the criteria for the offence do not apply in a residential context.
For example, the offence does not arise where the property owner is
not in occupation of the residential property immediately before
being excluded by the squatter and does not require the premises
for occupation as a residence - which applies to many holiday-home
owners. In such circumstances, the police are unable to intervene
without evidence that the squatters have committed other offences
such as criminal damage or burglary.

Other problems

Even where the criteria for an offence under section 12 of the
1977 Act arise, the procedure has not always been used - much to
the frustration of many property owners and occupiers. This appears
to have been mostly down to a lack of awareness and education
within the police, as recognised by the Metropolitan Police Service
in its response to consultation CP12/2011 "Options for
dealing with squatting". At page 32, it stated:

"The MPS also recognise that the lack of training and
practical knowledge regarding the law regarding squatting,
particularly section 7, may be a barrier to effective enforcement.
Improved training, including greater awareness of the damaging
impact of squatting, is part of ongoing work."

This lack of awareness and education on the part of the police
was unfortunately not shared by the squatter community, a number of
whom became well-practiced in advertising their
"squatters' rights" by way of a "section 6
notice" displayed at an appropriate entry point to the land.
These notices were designed to deter anyone seeking to have the
squatters forcibly evicted, by invoking section 6 of the Criminal
Law Act 1977. Section 6 of the 1977 Act provides that it is a
criminal offence to use or threaten violence to try to gain entry
into premises where:

there is someone present on those premises at the time who is
opposed to the entry of that person; and

the person using the violence knows that this is the case.

Although the display of a "squatters' rights"
notice was not required by section 6, the intention was to give
notification to anybody trying to enter the premises of the
presence of someone on the premises who was opposed to any such
attempt at entry. Under section 6(1)(b) of the 1977 Act, this would
then make it a criminal offence for that person to go onto the land
and use violence to secure it. (The section does not apply to a
displaced residential occupier, but this does not mean that such a
person can use anything more than reasonable force to seek an
eviction.) A conviction under section 6 can lead to imprisonment
for a term of up to 6 months or to a fine of up to £5,000, or
both.

As a result of these well-informed squatters, landlords often
faced the (somewhat ironic) risk of being subject to a criminal
prosecution if any forced re-entry of premises was attempted. Since
the police often refused to become involved in dealing with such
"civil" matters as squatters, the inevitable result was
the need for a property owner to incur time and money on obtaining
a Court Order in order to recover possession. Whilst the costs of
such possession proceedings are technically recoverable, costs
orders against trespassers tend to be of little value since the
action is usually brought against "Persons Unknown". Even
where this does not apply, a claimant owner is only like to recover
fixed costs if the possession hearing is uncontested.

The new offence

As mentioned above, Parliament recently decided to create a new
offence of squatting in a residential building - which was effected
under section 144 of the Legal Aid, Sentencing and Punishment of
Offenders Act 2012.

This offence is committed if a person (a) is in a residential
building as a trespasser having entered it as a trespasser, (b)
knows or ought to know that he or she is a trespasser, and (c) is
living in the building or intends to live there for any period. A
building is within the definition of
"residential" for the purposes of the Act if it
is "designed or adapted, before the time of entry, for use
as a place to live" (see section 144(3)(b)). Pursuant to
section 144(2) of the 2012 Act, the offence will not be committed
by tenants, lodgers or occupiers who originally occupied the
property with permission but subsequently had a disagreement with
the landlord and refused to leave, even if they leave and re-enter
the building.

A person convicted under section 144 faces imprisonment for up
to 6 months or a fine of up to £5,000 (or both). It is
irrelevant whether the person entered the building as a trespasser
before or after the commencement of the section. Further, under
section 17 of the Police and Criminal Evidence Act 1984, a
constable may enter and search any premises for the purpose of
arresting a person for an offence under section 144.

So, is the new offence better?

As yet, it is unclear the extent to which the introduction of
this criminal offence will, in practice, remove the need for
landlords and others to bring civil proceedings in order to remove
squatters from residential premises. Section 144 of the 2012 Act is
certainly wider in scope and more straightforward than section 7 of
the 1977 Act, in that it criminalises the act of squatting itself
rather than merely a failure to leave on request.

Given these improvements, it may be that the new offence will be
better understood and more widely enforced by the police than
section 7 of the 1977 Act was. Indeed, it may even be that the mere
introduction of a clearer criminal offence for the police to use
will act as a sufficient deterrent to dissuade many squatters from
occupying residential properties in the first place. However, it is
too early to tell in these early days of the availability of these
new criminal sanctions.

The main complaint regarding the new offence has been that it
does not extend to criminalising squatting at commercial
properties. However, the Ministry of Justice highlighted in its
consultation that tackling squatting in residential properties was
regarded as a "first step". It also said that it will
look at how to improve current civil procedures and the enforcement
of existing criminal offences in order to deal with squatting in
commercial premises.

What happens with squatters of commercial
properties?

In theory, it is possible for possession of all forms of
commercial premises to be recovered without a Court Order provided
that:

the occupier is not a residential tenant (or a former
residential tenant) of any part of the building; and

no force is required to obtain entry into the premises.

However, the requirement for entry to be without force means
that direct action to retake property is often difficult. As a
result, most owners of commercial property faced with squatters end
up with little choice but to issue a civil claim for possession.
Claims against trespassers have an accelerated procedure under Part
55 of the Civil Procedure Rules, which means that there is only
either 2 days (non-residential property) or 5 days (residential
property) between service of the claim and the hearing date. (This
compares with at least 28 days between the issue of a claim and the
hearing date for standard possession claims.) However, in practice,
hearings of claims against trespassers can often take place around
2-4 weeks after the issue of the claim and there can be a similar
delay after the order is made in securing a bailiff's
appointment for enforcement.

What about using Interim Possession
Orders?

In an effort to try to speed up the removal of squatters, some
property owners look to the option of applying for an Interim
Possession Order ("IPO"). This type of order offers a
potential "fast track" to possession, as it requires the
trespassers to vacate the premises within 24 hours of its service
upon them.

This procedure is available only where:

the claimant is solely seeking possession (i.e. not also a
claim for rent or mesne profits - such claims are unlikely against
"persons unknown");

the claimant has an immediate right to possession and has had
this right throughout the squatters' occupation; and

the claim is made within 28 days of the date on which the
claimant first became aware (or should have become aware) of the
trespass.

An IPO will not be granted where the defendant trespassers
entered or remained on the premises with the consent of a person
who, at the time of the consent, had an immediate right to
possession. This basically reserves the procedure for use against
trespassers as it cannot be used against tenants or licensees, even
where their tenancy or licence expires and they subsequently become
trespassers by failing to vacate the property. Under CPR 55.22, the
hearing of this type of application should take place not less than
3 days (or as soon as practical) after the date of issue. In
addition to checking that the above conditions have been complied
with and that satisfactory service of the application has been
effected on the trespassers, the court is also required to consider
whether the claimant has given - or is prepared to give - certain
undertakings. (This additional hurdle arises because an IPO is
effectively an interim injunction.)

In particular, the court is likely to seek an undertaking that
where it subsequently decides that the claimant is not entitled to
the IPO, the claimant will reinstate the defendants if required and
will pay such damages as the court may order. The court is also
likely to seek undertakings from the claimant that, before the
claim for possession is finally decided, it will not:

(i) damage the premises;

(ii) grant a right of occupation to any other person; and

(iii) damage or dispose of any of the defendants'
property.

In the event that these undertakings are given, the conditions
for an IPO are satisfied and the claimant proves effective service
of the relevant documents, the court will grant an IPO. At the same
time, it will set a date for the final hearing of the claim for
possession - which will be not less than 7 days after the date on
which the IPO is made.

The IPO must be served within 48 hours after it is sealed,
together with the copies of the claim form and the written evidence
in support. Following this, the squatters have 24 hours in which to
leave, or else they can be arrested if they remain at the premises
for committing an offence under section 76 of the Criminal Justice
and Public Order Act 1994. This is an advantage over the normal
(even accelerated) possession procedure, in that the police may
potentially become involved much more quickly. However, once again,
problems are sometimes encountered when property owners seek to
arrange enforcement by the police.

At the final hearing, the court may make any order it considers
appropriate. This includes making a final Order for possession,
dismissing the claim for possession, giving directions for the
claim for possession to continue or enforcing any of the
claimant's undertakings.

What does the future hold?

Whilst it is early days for section 144 of the 2012 Act and its
effectiveness at quickly removing squatters from residential
property is yet to be proven, the creation of this new offence is
certainly step forward for property owners and occupiers - if only
to emphasise Parliament's intention that the police should take
action to deal with such situations. The "Advisory Service for
Squatters" is certainly concerned about the implications of
the new offence, stating that that they are unable to be "as
reassuring as we would wish" to those they are advising on the
new law. They have also recognized and recommended that squatters
should remove the "old much-loved Legal Warnings, as these
will be read as an admission of committing a criminal
offence". Nonetheless, it seems that the ASS will be keen to
encourage squatters to challenge the new laws and it expects to see
"a spate of challenges and test cases, which will draw lines
between what can and what can't be done".

Unsurprisingly, the ASS has highlighted the fact that
non-residential properties can still be squatted. Bearing in mind
the costs and delay involved in pursuing court proceedings, it is
hardly surprising that owners of commercial property have expressed
disappointment at the limited ambit of the new legislation. This
disappointment is particularly acute given the concern of property
owners that squatters who might previously have occupied
residential properties may now turn their efforts to occupying
commercial property in order to avoid the risk of criminal
prosecution and to delay eviction for as long as possible. Again,
time will tell whether this concern is borne out by events and
whether Parliament will be required to intervene once again.

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